[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Rules and Regulations]
[Pages 64394-64398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22562]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0511]
RIN 1625-AA00


Safety Zone; Spa Creek, Annapolis, MD

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain waters of Spa Creek. This action is necessary to provide for 
the safety of life on these navigable waters within Market Slip (Ego 
Alley), Annapolis, MD, during a film project on October 22, 2020 
(alternate date October 23, 2020). This regulation prohibits persons 
and vessels from being in the safety zone unless authorized by the 
Captain of the Port Maryland-National Capital Region or a designated 
representative.

DATES: This rule is effective from 5 a.m. on October 22, 2020 through 
noon on October 23, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://

[[Page 64395]]

www.regulations.gov, type USCG-2020-0511 in the ``SEARCH'' box and 
click ``SEARCH.'' Click on Open Docket Folder on the line associated 
with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Ron Houck, U.S. Coast Guard Sector Maryland-National 
Capital Region; telephone 410-576-2674, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    Hoonigan Industries, of Long Beach, CA, notified the Coast Guard 
that it will be conducting a film project using barges and other marine 
equipment positioned at two locations in Spa Creek, at Annapolis, MD. 
In response, on September 11, 2020, the Coast Guard published a notice 
of proposed rulemaking (NPRM) titled ``Safety Zones; Spa Creek, 
Annapolis, MD'' (85 FR 56186). In that NPRM we proposed to establish 2 
security zones--the first within a portion of Market Slip (Ego Alley) 
and the second across the width of Annapolis Harbor. The first safety 
zone was to be enforced from 5 a.m. to noon on October 19, 2020, or if 
necessary due to inclement weather on October 19, 2020, from 5 a.m. to 
noon on October 20, 2020. The second safety zone was to be enforced 
from 7 a.m. on October 20, 2020, through noon on October 22, 2020, or 
if necessary due to inclement weather continued through noon on October 
23, 2020.
    After NPRM had been sent to the Office of the Federal Register and 
scheduled for publication, the Coast Guard was notified by the film 
company that they were making three changes to the project. First, the 
filming date at Spa Creek within Market Slip (Ego Alley) was 
rescheduled from October 19, 2020, to October 22, 2020 (additional rain 
date of October 23, 2020, if needed.) Second, the company also informed 
the Coast Guard that another vessel would be used during filming at 
this location. No changes to the filming hours at this location were 
made. Filming is scheduled to take place from 5 a.m. to noon on October 
22nd (with additional filming on October 23rd if necessary due to 
inclement weather on the preceding dates). Finally, the film company 
notified the Coast Guard that the filming scheduled for the location 
across the width of Spa Creek between Annapolis City Dock and Eastport 
had been cancelled.
    Due to the date of the scheduled event, the Coast Guard did not 
have time to publish a supplemental notice of proposed rulemaking 
(SNPRM). To the extent, if any, that the Coast Guard's inability to 
publish a supplemental notice of proposed rulemaking invalidates the 
notice requirement required by the Administrative Procedure Act, the 
Coast Guard issues this temporary rule without prior notice and 
opportunity to comment pursuant to authority under section 4(a) of the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision 
authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because it is impracticable and contrary to 
the public interest to do so. Immediate action is needed to protect 
persons and vessels from the hazards associated with this event. It is 
impracticable and contrary to the public interest to publish an NPRM or 
SNPRM because a final rule needs to be in place by October 22, 2020, to 
minimize potential danger to the film crew and nearby public.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. Delaying the effective date of 
this rule would be impracticable and contrary to the public interest 
because immediate action is needed to restrict vessel traffic to 
protect life, property and the environment and respond to the potential 
safety hazards associated with the film project.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Maryland-
National Capital Region (COTP) has determined that potential hazards 
associated with the film project will be a safety concern for anyone 
within Market Slip (Ego Alley), Annapolis, MD, during filming. The 
purpose of this rule is to ensure safety of vessels and the navigable 
waters in the safety zone before, during, and after the scheduled 
event.

IV. Discussion of Comments

    We received 7 comments on our NPRM published September 11, 2020. 
The comments are available for public inspection at www.regulations.gov 
under docket USCG-2020-0511. We address the commenter's concerns below.

1. Is it necessary for the Coast Guard to issue this rule?

    A few commenters questioned whether it was necessary for the Coast 
Guard to issue a rule (create a safety zone) for this event. The Coast 
Guard has determined that access to the water, shoreline to shoreline, 
in the area near where filming will take place needs to be restricted 
to ensure the safety of those involved in the filming and the nearby 
public. Safety zones are only necessary under certain conditions. Not 
every event on the water requires access to be restricted. A safety 
zone for this event is needed because the project is likely to pose an 
extra or unusual hazard to the safety of human life on and near the 
navigable waters of the United States at Market Slip (Ego Alley), 
Annapolis MD. Hazardous activities associated with the project include 
aerial stunt car jumps with minimum heights across the entire width of 
the waterway. Filming and associated activities may be conducted on the 
water or shore area.\1\ The Coast Guard is issuing this rule under the 
authority of 46 U.S.C. 70034.
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    \1\ See 33 CFR 165.20 (definition of ``safety zone'').
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2. Why didn't the Coast Guard provide specifics about the filming 
project, such as what the company is filming?

    Some commenters expressed concern about a lack of specificity of 
the planned activities associated with the film project. Certain 
details of the planned event were still being developed at the time of 
publishing the proposed rule. The Coast Guard wanted to ensure the 
public was afforded an opportunity to comment on its proposal, even if 
final details had not yet been provided by the film company. The Coast 
Guard is focused on the importance of identifying and mitigating the 
potential hazards posed by the event, not on items such as what the 
film project is actually filming or who may be involved.

3. Will all of Spa Creek be blocked?

    One commenter requested clarification about whether the entire 
width of Spa Creek could be covered by the safety zone and whether it 
would include navigable waters immediately adjacent to the Annapolis 
City Dock.

[[Page 64396]]

Yes, it would have. However, with the changes made by the film company, 
the safety zone no longer covers all of Spa Creek, but covers only all 
navigable waters of Spa Creek within Market Slip (Ego Alley), from 
shoreline to shoreline, within coordinates specified in the regulation. 
It includes navigable waters immediately adjacent to the Annapolis City 
Dock. Coast Guard vessels will be present to enforce this safety zone. 
No persons or vessels will be authorized to transit the area of the 
safety zone during actual filming, however, they may be allowed to do 
so immediately before and after, and at the discretion of the COTP or 
the COTP's representative, following consultation with on scene film 
project representatives. Waterway users can seek permission to enter 
the safety zone by contacting the COTP or the COTP's representative by 
telephone at 410-576-2693 or on Marine Band Radio VHF-FM channel 16. 
The Coast Guard vessels enforcing this safety zone can be contacted on 
Marine Band Radio VHF-FM channel 16.

5. Why was there a 15-day comment period rather than the normal 30 
days?

    One commenter asked why the Coast Guard only provided a 15-day 
comment period rather than the agency's normal 30 days. The Coast Guard 
considers public participation essential to effective rulemaking. 
However, the Administrative Procedure Act does not specify a minimum 
time for submission of written comments. And, while the Coast Guard 
normally tries to allow 30 days of comment, cases and circumstances may 
arise that make it prudent to have a shorter comment period.\2\ It was 
not possible to publish the NPRM for this action sooner as the 
necessary details were not yet available to the Coast Guard. And, we 
were concerned that a 30-day comment period would not leave the agency 
enough time to review all comments, respond to any significant 
comments, and have a final rule drafted and published in the Federal 
Register in time for the scheduled event. Considering all the factors--
the time frame before the event, the length of the NPRM, the relatively 
short proposed regulatory text, and the location of the event--we felt 
that 15 days allowed sufficient time for members of the interested 
public to review the notice and provide us with informed feedback on 
the proposal. This analysis in determining the sufficiency of a 15-day 
comment period is consistent with the legislative history of the 
Administrative Procedure Act, which indicates that an NPRM ``must be 
sufficient to fairly apprise interested parties of the issues involved, 
so that they may present responsive data or argument.'' \3\
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    \2\ See 33 CFR 1.05-15.
    \3\ Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking 273 
(5th ed.2012) (citing Administrative Procedure Act: Legislative 
History, S. Doc. No. 248 79-258 (1946)).
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6. Did the Coast Guard consider impacts to small business?

    One commenter was concerned about whether or not their company 
would be allowed to conduct a planned sailing cruise for the affected 
area of Annaopolis Harbor and Spa Creek. The Coast Guard's rule allows 
vessels desiring to transit to or from local waterside businesses 
located within the safety zone during enforcement to seek permission to 
enter the zone. Such vessels can contact the Coast Guard vessels 
enforcing this safety zone on Marine Band Radio VHF-FM channel 16 
(156.8 MHz).

V. Changes From the NPRM and This Final Rule

    The Coast Guard amended the regulatory text from that proposed in 
the NPRM to account for the date change to the first safety zone and 
the removal of the second safety zone. Otherwise, this rule adopts the 
text of the NPRM without change.
    This rule establishes a temporary safety zone from 5 a.m. on 
October 22, 2020, to noon on October 23, 2020. The safety zone will 
cover all navigable waters of Spa Creek, within Market Slip (Ego 
Alley), from shoreline to shoreline, bounded on the southeast by a line 
commencing at latitude 38[deg]58'34.2'' N, longitude 076[deg]29'05.6'' 
W, thence southwest to latitude 38[deg]58'32.9'' N, longitude 
076[deg]29'06.4'' W, located at Annapolis, MD. The duration of the zone 
is intended to ensure the safety of vessels and these navigable waters 
before, during, and after the scheduled 5 a.m. to noon film project. 
Except for vessels operated by Hoonigan Industries and marine 
equipment, which includes any vessel, barge or other equipment operated 
by Smith Marine Towing, Inc., or its subcontractors, no vessel or 
person will be permitted to enter this safety zone without obtaining 
permission from the COTP or a designated representative. The COTP will 
notify the public that the safety zone will be enforced by all 
appropriate means to the affected segments of the public, including 
publication in the Federal Register, as practicable, in accordance with 
33 CFR 165.7(a). Such means of notification may also include, but are 
not limited to, Broadcast Notice to Mariners or Local Notice to 
Mariners. Vessels or persons violating this rule are subject to the 
penalties set forth in 46 U.S.C. 70036 (previously codified in 33 
U.S.C. 1232) and 46 U.S.C. 70052 (previously codified in 50 U.S.C. 
192).

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, duration, and time-of-day, day-of-week and time-of-year of 
the safety zone. Vessel traffic will be able to safely transit around 
this safety zone which will impact a small designated area of the Spa 
Creek within Market Slip (Ego Alley) for 14 total enforcement hours. 
Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the zone, and the rule will allow 
vessels to seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard received no comments from the Small Business 
Administration on this rulemaking. The Coast Guard certifies under 5 
U.S.C. 605(b) that this rule will not have a significant economic 
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety

[[Page 64397]]

zone may be small entities, for the reasons stated in section V.A. 
above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, this rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321-4370f), and have determined that this action is one of 
a category of actions that do not individually or cumulatively have a 
significant effect on the human environment. This rule involves a 
safety zone lasting 14 total enforcement hours that will prohibit entry 
within a portion of Spa Creek within Market Slip (Ego Alley). It is 
categorically excluded from further review under paragraph L60(a) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section to coordinate protest activities so 
that your message can be received without jeopardizing the safety or 
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T05-0511 to read as follows:


Sec.  165.T05-0511   Safety Zone; Spa Creek, Annapolis, MD.

    (a) Location. The following area is a safety zone: All navigable 
waters of Spa Creek, within Market Slip (Ego Alley), from shoreline to 
shoreline, bounded on the southeast by a line commencing at latitude 
38[deg]58'34.2'' N, longitude 076[deg]29'05.6'' W, thence southwest to 
latitude 38[deg]58'32.9'' N, longitude 076[deg]29'06.4'' W, located at 
Annapolis, MD. These coordinates are based on datum NAD 83.
    (b) Definitions. As used in this section--
    Captain of the Port (COTP) means the Commander, U.S. Coast Guard 
Sector Maryland-National Capital Region.
    Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been authorized by the Captain of the 
Port Maryland-National Capital Region to assist in enforcing any safety 
zone described in paragraph (a) of this section.
    Marine equipment means any vessel, barge or other equipment 
operated by Smith Marine Towing, Inc. or its subcontractors.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative. Except for vessels operated by 
Hoonigan Industries and marine equipment, all vessels underway within 
this safety zone at the time it is activated are to depart the zone.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by telephone at 410-576-2693 or on Marine Band Radio 
VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this 
section can be contacted on Marine Band Radio VHF-FM channel 16 (156.8 
MHz).
    (3) Those in the safety zone must comply with all lawful orders or 
directions given to them by the COTP or the COTP's designated 
representative.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted in 
the patrol and enforcement of the safety zone by Federal, State, and 
local agencies.
    (e) Enforcement period. This section will be enforced from 5 a.m. 
to noon on October 22, 2020, or if necessary due to inclement weather 
on October 22, 2020, from 5 a.m. to noon on October 23, 2020.


[[Page 64398]]


    Dated: October 7, 2020.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2020-22562 Filed 10-9-20; 8:45 am]
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